Webb v Port Stephens Council

NCAT Appeal Panel|2023-08-07

Introduction

On 10 January 2023, the Appellant filed a Notice of Appeal in the Tribunal, seeking to appeal on 16 (then later expanded to 18) grounds, the decision of Senior Member Levine in the Administrative and Equal Opportunity Division on 20 December 2022, affirming the decision of the first Respondent (Council) that was under review.
Council's decision on the Appellant's application for access to government information was issued on 17 November 2021 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).
On 17 May 2023, the Appeal Panel dismissed all grounds of the appeal lodged by the Appellant in Webb v Port Stephens Council [2023] NSWCATAP 133 (Decision).
The Appeal Panel set a timetable for the making of a costs application by the Respondents. The Council applied for an order under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), that the Appellant pay Council's costs of the appeal in the fixed sum of $15,000, to be paid within 28 days of the order being made.
The issues on appeal are as follows: 1. Whether a hearing of the application should be dispensed with pursuant to s 50(2) of the NCAT Act. 2. Whether or not special circumstances exist warranting an order for costs pursuant to s 60(2) of the NCAT Act.

Should the hearing be dispensed with?

Legal principles relevant to applications for costs

Section 60 of the NCAT Act provides as follows: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may - (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section - costs includes - (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
For the purposes of s 60(3)(f) of the NCAT Act, the Council referred to the part of s 36 of the NCAT Act which provides: (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. … (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal - (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
The Appeal Panel in Grasso v Owners of Strata Plan No 52399 [2022] NSWCATAP 91 at [12] set out some of the relevant principles concerning an award of costs in special circumstances: "1. An application for costs can only succeed before the Tribunal if it can be shown that 'the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional.': Santow JA in Cripps v G & M Mawson [2006] NSWCA 84 at [60] in relation to s 88 (1) of the Administrative Decisions Tribunal Act 1997, which, by analogy, is a useful statement applicable in this Tribunal; 2. 'An assessment whether circumstances are "special" involves the exercise of a value judgement carried out by way of comparison between what is not "special", and what is special.': See Alexander James Pty Ltd v Pozetu Pty Ltd (No.2) [2016] NSWCATAP 75 at [14]; 3. the nature and complexity of the appeal proceedings is the relevant consideration; not the nature and complexity of the proceedings at first instance: see Sahade v Owners SP No 62022 [2015] NSWATAP 225 at [38]; 4. the power to award costs is a discretionary power vested in the decision maker: see Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 62 at 65; [1997] HCA 6; 5. the exercise the discretion requires a tribunal 'to weigh whether those circumstances are sufficient to amount to "special circumstances" that justify departing from the general rule that each party bear its own costs': see The Owners - Strata Plan No 63731 v B&G Trading Pty Ltd (No2) [2020] NSWCATAP 273 at [13]; 6. an order for costs is intended to compensate the successful party: it is not intended to be punitive in nature: Oshlak v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; Hamod v State of New South Wales (2002) 188 ALR 659; [2002] FCA 424; [2002] FCAFC 97; and 7. the discretion to award costs is to be exercised judicially: Nguyen v Perpetual Trustee Co Ltd [2015] NSWCATAP 264 at [94].

Consideration

Council relied upon four relevant considerations which it contended gave rise to the special circumstances warranting an award of costs as follows: 1. whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings; 2. the nature and complexity of the proceedings; 3. the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law; and 4. whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance.

Prolonging unreasonably the time taken to complete the appeal

In relation to this consideration, Council submitted that the Appellant had failed to file any evidence of the first instance proceedings but had merely requested the Tribunal to "bring forward previous file records".
Council contended that while it recognised that the onus was on the Appellant to produce the documents required of her, nevertheless Council filed a transcription of the entirety of the first proceedings in an attempt to speed up the appeal process and assist the Tribunal in their review of the matter under appeal.
We are not satisfied that this amounts to a special circumstance warranting an award of costs.
The Appellant was never obliged to file any evidence or transcription in her appeal. The failure to do so may have consequences for her appeal. The Council was able to rely upon the failure of the Appellant to put forward any transcriptions of the first instance proceedings without having to file a transcription itself.
Next, Council referred to the fact that the Appellant filed and served a voluminous amount of material, including seeking to rely upon 41 new documents in the appeal proceedings.
According to Council, a significant amount of the material relied upon by the Appellant was not relevant to the matter under appeal but was in fact a further attempt to reiterate issues with the Council and disparage Council staff and the second Respondent.
The Council submitted that these actions prolonged unnecessarily the time taken to complete the matter, and also resulted in making the appeal unnecessarily complex.
We are not satisfied that this amounts to a special circumstance. The amount of material provided could not be described, in our view, as being out of the ordinary for an appeal of this type. Similarly, the attempt to rely upon new documents does not strike us as uncommon.
The submissions made as to disparagement of Council staff and the second Respondent, whilst to be deprecated and not encouraged, was also not out of the ordinary in a case of this type with a self-represented litigant.
Further, we note, the principle is that costs are to compensate a party and not to punish the party ordered to pay costs. In this regard we note that most of the disparaging allegations were made against the second Respondent rather than the first Respondent and accordingly ought not have involved much additional time or costs of the first Respondent.
Next, Council referred to the fact that it and the second Respondent had submitted that the appeal can and should be dealt with on the papers. The Appellant opposed such a course and at the oral hearing before the Appeal Panel the Appellant declined to make oral submissions and indicated that she was content to rely upon her written submissions.
She also did indicate, however, that she would wait until both the first and second Respondents had made oral submissions before deciding whether to make any further submissions herself.
Some oral submissions were made by the first and second Respondents and then some brief oral submissions in reply were made by the Appellant.
The oral hearing took less than the allocated half-day and indeed was completed in approximately 45 minutes.
Given the short time involved in the oral hearing and the fact that some oral submissions were made by the parties, we are not satisfied that this circumstance amounts to a special circumstance warranting an award of costs.
Next, the Appellant referred to the fact that at the oral hearing, the Appeal Panel gave the Appellant the opportunity to withdraw her assertions of misconduct directed at the second Respondent and the further fact that she declined to do so. This fact alone does not, in our view, amount to a special circumstance warranting an order for costs.
We have already dealt with the submission about the Appellant making disparaging comments and allegations of misconduct against the Council and the second Respondent. We note that in this regard the Appeal Panel only directed the Appellant's attention to her assertions about the second Respondent not Council.
Next, the Council referred to the fact that of the 18 grounds of appeal outlined by the Appellant many related to the same contention and did not need to be listed as separate grounds of appeal.
We have considered the Council's written submissions detailing these matters but have come to the view that the fact that some grounds of appeal could be regarded as relating to the same contention is not out of the ordinary in appeal proceedings in the Tribunal, including in appeal proceedings where the Appellant is legally represented.
Accordingly, we do not think this factor justifies an award of costs.
Lastly, under this heading, the Council noted that the Appellant commenced proceedings with 16 grounds of appeal, however this was expanded to 18 in her submissions filed on 15 March 2023. According to the Council, it was "improper" for the Appellant to add further grounds in her submissions and this further complicated the proceedings unnecessarily.
In our opinion, the raising of two additional grounds in written submissions beyond the Notice of Appeal is not out of the ordinary.
We further note that no objection was taken to this fact and the Appeal Panel dealt with the additional grounds without objection. Accordingly, it is difficult to see how this fact added to the costs of the appeal in any improper manner.

Little strength and no tenable basis in fact or law

Council referred to the fact that all of the grounds of appeal were dismissed by the Appeal Panel.
Of the 18 grounds, Council in particular, asserted that several allegations were made which could not possibly be considered to be an error of law or not open to be found on the facts by the Tribunal.
The Council referred to the following: Ground 12 - The CSO misrepresented the precise nature of the population who have access to the training material. Ground 13 - The CSO misrepresented to the Tribunal that the Respondent Port Stephens Council was a client of the CSO.
We note that these allegations are against the second Respondent not Council. Bearing in mind the principle that an award of costs is to compensate a party not to punish the party to be ordered to pay costs, we are not satisfied that this amounts to a special circumstance warranting an award for costs.
Next, Council referred to grounds 1 and 2 and submitted that contentions were made about copyright material which had no basis in law or fact. Similarly, the Council referred to the Appellant's submission that the Tribunal erred by misconstruing the case of CBA v Amadio (1983) 151 CLR 447 which was contended to be "entirely incorrect".
Whilst these contentions in our view were no doubt misguided, we are not satisfied that they were so out of the ordinary as to amount to special circumstances warranting an award of costs.
Lastly, under this heading, Council referred to ground 7 of the appeal, which is namely that "the Tribunal erred by accepting unsubstantiated/un-evidenced claims of financial and other interests on the part of the Crown Solicitor".
According to the Council, the second Respondent provided ample evidence both in an affidavit and sworn evidence that supported the relevant claims. It was contended that the Appellant's assertion to the contrary was entirely unsubstantiated and unchallenged by the Appellant during the original hearing when she in fact had the opportunity to raise such assistance.
Accordingly, Council submitted that this ground of appeal had no basis in fact.
We are not satisfied that this amounts to a special circumstance so as to warrant an award of costs. Whilst the ground was misguided, we also note that the ground related to the evidence put forward by the second Respondent and the second Respondent fully dealt with the matter in its submissions so that the costs incurred by the first Respondent in defending this ground of appeal should not have been significant.
In all of the circumstances we are not satisfied that this issue should justify an award of costs.

Was the appeal frivolous or vexatious or otherwise misconceived or lacking in substance?

Under this heading the Council again raised its submission that many of the grounds were remarkably similar so that we should find the appeal proceedings were frivolous or vexatious.
We have already dealt with the contention that many of the grounds were similar and we refer to our comments above in this regard.
Next, the Council contended the appeal was misconceived and lacked substance in its entirety.
In this regard, the Council again referred to the unfounded allegations against the second Respondent and Council staff. We have already dealt with this submission above and rely upon our comments in this regard.
We note that in this regard the Council asserted that whilst the allegations against the second Respondent were not made against the first Respondent, such allegations still require consideration and caused it to incur costs unnecessarily.
We are not convinced that it was in fact necessary for the Council to incur significant extra costs in this regard or in fact that it did incur significant extra costs in this regard.
Next, Council referred to the fact that the Appeal Panel in the Decision said that the Appellant's contentions in respect of grounds 13 and 15 were misconceived. Ground 13 related to the Appellant's assertion that the second Respondent misrepresented to the Tribunal that the first Respondent was a client of the second Respondent. In this regard we are not satisfied that the submission and the ground was out of the ordinary in appeal proceedings and further as remarked previously, the contention was largely directed to the second Respondent which it dealt with fully in its submissions such that we are not convinced that it was necessary for the Council to incur significant extra costs in dealing with this ground.
In respect of ground 15, this involved submissions on s 45(1)(a) of the NCAT Act which the Appeal Panel accept involved a failure on the part of the Appellant to correctly understand s 45 of the NCAT Act.
Whilst the ground was misconceived in law, we are not satisfied that the prosecution of this ground was so out of the ordinary or of such significance in the appeal as a whole as to amount to a special circumstance warranting the award of costs.
Next, Council referred to ground 5 of the appeal that "the Tribunal erred by misconstruing the Crown Solicitor's claim of competitive commercial value". In this regard, Council referred to the Appeal Panel's findings that the Appellant failed to consider appropriately the Tribunal's reasons.
According to the Council, had the Appellant correctly read and had regard to the Tribunal's findings, she would have not pursued this ground as it was misconceived and lacking in substance.
In our opinion, whilst the ground of appeal was substantially misconceived, we do not think the contentions advanced by the Appellant were particularly out of the ordinary in appeal proceedings.
Further, we note that the contention substantially related to the second Respondent's claims which were dealt with fully by the second Respondent's submissions such that we are not satisfied that it was necessary for the Council to incur any significant costs in dealing with this ground of appeal.

Conclusion

For the reasons given above, we are not satisfied of the existence of special circumstances warranting an award for costs.
In the result, there will be no order as to costs.

Disposition

The orders of the Appeal Panel will be: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the hearing of the cost application is dispensed with. 2. The parties are to pay their own costs. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 August 2023

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (15)